Geebung v The Queen

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
GEEBUNG v THE QUEEN
[2019] SASCFC 139
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Doyle and The Honourable Justice Hughes)
8 November 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - EVIDENCE
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - TESTIMONY AS TO BELIEF IN IDENTITY
After a trial by jury, the appellant was convicted of one count of aggravated robbery and one count of trafficking in a large commercial quantity of a controlled drug.
The appellant appealed his conviction for the aggravated armed robbery count. The appellant argued that the verdict of the jury was unreasonable or could not be supported having regard to the evidence. The robbery occurred when the victim stopped at the scene of a car accident to render assistance on a country road. The victim was confronted by the offender who pointed a sawn-off shotgun at him and demanded his vehicle, which he then used to leave the scene.
It was the appellant’s contention on appeal that the evidence of the victim, who was the only eye-witness to give evidence of the offending, was deficient in relation to the appearance of the offender and in its failure to have observed the presence of another person in the appellant’s company at the scene. The appellant argued that the evidence was incapable of satisfying the jury beyond reasonable doubt that the appellant, and not the other person present with the appellant at the scene of the accident, was the offender.
The Crown argued that the cumulative effect of the circumstantial evidence, including forensic evidence, left it open to the jury to conclude beyond reasonable doubt that the appellant robbed the victim of his car at gunpoint.
Held per Hughes J (Peek and Doyle JJ) agreeing:
1. Appeal dismissed.
2. The whole of the evidence was capable of supporting a finding beyond reasonable doubt that the appellant committed the armed robbery.
M v the Queen (1994) 181 CLR 487; R v Klamo (2008) 18 VR 644; R v Place (2015) 124 SASR 467; R v Lowe [2016] SASCFC 118, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Verdict unsafe or unsatisfactory and not supported by the evidence", "Identification evidence", "Circumstantial evidence"

GEEBUNG v THE QUEEN
[2019] SASCFC 139
Court of Criminal Appeal: Peek, Doyle and Hughes JJ

PEEK J: I would dismiss the appeal. I agree with the reasons of Hughes J.
DOYLE J: I would dismiss the appeal. I agree with the reasons of Hughes J.
HUGHES J: The appellant, Ethan Geebung, was convicted following a trial by jury of one count of aggravated robbery and one count of trafficking in a large commercial quantity of a controlled drug. Both offences occurred on 10 November 2016 in the State’s south-east. The appellant appeals his conviction in relation to the charge of aggravated robbery on the ground that the jury’s verdict was unsafe or unsatisfactory and not supported by the evidence. No challenge is made to the count regarding trafficking. The circumstances of that charge occurred later in time and at a different location from the aggravated robbery and as such were quite factually separate.
Overview
The charge of aggravated robbery arose from a car-jacking at gun-point following a motor vehicle accident between two vehicles at a country intersection. It was not disputed that one of the two vehicles involved in the accident, a white utility, was driven by Mr Waples. The other vehicle was a black Holden utility. After the collision, Mr Waples was standing talking with a younger man from the black Holden utility, when a third vehicle driven by Mr Schriever, arrived on the scene and stopped to render assistance. After a brief exchange between the three of them, Mr Schriever was assured his help was not needed and he returned to his vehicle. As he went to drive away, the younger man from the black Holden utility who had been talking to Mr Waples appeared at Mr Schriever’s driver-side window pointing a sawn-off shotgun at him and demanding that he get out of the vehicle. The younger man from the black Holden utility then drove off in Mr Schriever’s vehicle, giving rise to the charge of aggravated robbery.
As will be considered in further detail, the evidence that emerged at trial indicated that there were two men in the black Holden utility at the time of the collision; the appellant and Mr Lachlan Mitchell. On appeal, the appellant concedes that this was a fact that the jury may, without error, have found.
The appellant contends that, having regard to the identification evidence, the jury could not have excluded the hypothesis that Mr Mitchell, and not the appellant, was the armed robber. The Crown case is that it was open to the jury to have excluded that hypothesis, having regard to the cumulative effect of the circumstantial evidence that had been put before it. In the framework established in M v The Queen[1], the appellant’s position was that the evidence was such as to preclude the jury acting reasonably from having reached a state of satisfaction of his guilt to the requisite standard.
[1] (1994) 181 CLR 487.
This Court’s task is to consider whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. The jury had the benefit of seeing and hearing the witnesses. Bearing that in mind, a doubt that the Court of Appeal is left with might be considered to be a doubt that the jury should have retained. The Court of Criminal Appeal may conclude that no miscarriage has occurred only if the jury’s advantage of seeing and hearing the evidence is capable of resolving that doubt.[2]
[2] R v Klamo (2008) 18 VR 644 at 653, [38]; R v Place (2015) 124 SASR 467 at 492-494, [78]; R v Lowe [2016] SASCFC 118 at 40, [174].
The appellant characterised the case as one that rose or fell upon the reliability of the identification evidence by the Crown’s primary witness, Mr Schriever. The Crown, on the other hand, argued that the whole of the evidence was such as to leave for the jury “no solid obstacle” but rather a “pathway to a conviction” that the Court of Criminal Appeal should likewise recognise and adopt.[3]
[3] R v Klamo (2008) 18 VR 644 at 653 – 654, [38]-[40].
The defence tendered no evidence. The defence case emerged to some extent through the evidence of the appellant’s girlfriend, called by the Crown, the appellant’s statements in recorded telephone conversations with his girlfriend in prison, and the alternative hypothesis that the jury was invited to consider during defence counsel’s closing address.
The evidence in more detail
The allegation of aggravated armed robbery arose as part of the aftermath of a two-vehicle accident at the intersection of Attamurra Road, which is sealed, and Sherwin Road, a dirt road. The closest hamlet is Mil-Lel. At around 10.00 or 10.30 am a black Holden utility and a white farm utility collided. The white farm utility was driven by Mr Waples. Mr Waples’ account of the events was not available to the jury because he had been diagnosed with dementia a few weeks prior to the accident such that any account he gave was unreliable.
Photographs tendered at trial showed that as a result of the collision, Mr Waples’ vehicle came to rest wholly on the verge between the road and a field. It was facing in a south-easterly direction, with its bonnet protruding into the field after having penetrated the fence surrounding the field.
After impact, the black Holden utility came to a stop facing south-west on the north-bound lane of Attamurra Road. The front half of the vehicle was on the verge facing a field. Its rear half was on the carriageway. The car was facing in the wrong direction. It was a two door vehicle. There was extensive damage to the passenger side of the vehicle from bonnet to tail light and the front passenger door was so damaged it could not be opened.
Upon this scene came Mr Schriever, a 64 year old local man who was familiar with the roads both as a land-owner and an officer of National Parks and Wildlife. He was driving north along Attamurra Road when he came upon the black utility which was blocking the lane. He pulled up adjacent the black utility by crossing into the right-hand lane. His evidence was that two men were standing “behind the tailboard” of the black utility, speaking to one another. He distinguished them by reference to their ages. It was common ground that one was the driver of the white utility, Mr Waples, whom Mr Schriever described as the “older bloke”. The other was described as “the younger man”. In his evidence in chief, Mr Schriever was asked to describe the younger man.
Q.      What about the other man.
A.      Early 20s I suspect.
Q.      Can you describe his complexion.
A. To be honest I wasn't taking a real lot of notice at the time. I really just asked if they were okay. But from memory he appeared to be - to be honest I'm not sure what - I wasn't taking much notice of his complexion. But certainly - he was probably my colour I guess so what would that be? Pale-ish.
Q.      What ethnicity did you believe him to be, if you made a view about that.
A. When I pulled up I probably wasn't looking at that. As things unfolded I suspected that he may have been of indigenous origin but I'm not 100% sure.
Q.      Was that in any way based on his complexion.
A.      Mannerisms more likely I think.
Q.      And could you describe whether he had any facial hair.
A.      I think he was unshave - had a few day's growth but I’m not 100% sure.
Mr Schriever went on to give evidence that there was a brief exchange between the three men whilst Mr Schriever was out of his vehicle, in which he offered assistance and was ‘waved away’ by Mr Waples. Mr Schriever returned to his vehicle and got in. The engine was running and he was just about to take off when the younger man appeared at his driver’s side window, pointing a sawn-off shot gun at him. The man had the gun at chest-height but because Mr Schriever was seated, it was pointed at his head. The window was up.
Q.      Did he say anything.
A.      He asked me to - he said 'Get out of the car'.
Q.      Was the window up or down when he said that.
A.      It was up on the driver's side at the time.
Q.      Can you describe the manner in which he said that to you.
A. Aggressively I guess, he was quite determined. I'm not sure whether he yelled, I was taken completely by surprise so it was definitely an ggressive tone anyway.
Q.      What did you do.
A. For a split second I wondered if it was real and then I figured I will just get out of the car. I hopped out of the car, backed away, put my hands up, didn't look him in the eye, he hopped in and drove off.
Q. Were your keys still in the car when you got out.
A.      The vehicle was still running, I had not turned it off.
Q.      When you say 'he hopped in', he got into the driver's -
A.      Yes, he did get into the driver's side.
Q.      So you left the door open I think.
A.      I left the door open, yes.
Q.      In which direction did he drive off.
A. He drove off in a northerly direction and then turned left down Sherwin Road and headed towards Mil-Lel, do you want the full story?
Q.      Yes.
A. So he drove down Sherwin Road, I approached the old, when I say 'old', my age, the man behind the Holden ute because I assumed he was the owner of the Colorado, asked him if he had a phone so that we could ring the police or dial 000.
Whilst Mr Schriever and the older man were standing at the white utility trying to use Mr Waples’ mobile phone to call police, Mr Schriever’s car returned to the scene. Mr Schriever’s evidence was:
A.At that point he came - the vehicle that he had taken from me came around the corner and stopped at the Holden ute. There was another person in the vehicle with him.
Q.      Whereabouts in the vehicle.
A.      In the passenger seat.
Q.      About how long was this after your car had driven away.
A.      Might have been five minutes at the outside.
Given that Mr Schriever had not described a third person at the scene of the accident, he was then asked a question directed at whether he had been car-jacked by one or two people, and what the passenger in the returning vehicle looked like.
Q.      Did you see anyone getting into the passenger seat of your car.
A.      No.
Q.      Did you know how or when that happened.
A.      I'm assuming that -
Q.      Don't assume.
A.      No, I don't, no.
Q.      Did you make any observation of that person's appearance.
A. I did at the time, I assumed he was slightly darker complexion to the other man, he appeared to be indigenous also, I think he had longer hair but he was a bit thinner, maybe taller. Without seeing the statement I can't give you an exact description.
The two people in Mr Schriever’s car stopped next to the black Holden utility and the driver got out. The driver pointed the shotgun “in their general direction” and Mr Schriever and Mr Waples retreated behind the white utility. Mr Schriever observed the driver retrieve something from the front of the black Holden utility, return to the vehicle he had just stolen from Mr Schriever, and take off in that car towards Mount Gambier. The passenger did not move from his position in Mr Schriever’s car. Mr Schriever did not see what it was that had been retrieved.
The identification evidence
It was common ground that Mr Schriever failed to identify the appellant or Mr Mitchell in identification line-ups that occurred later in the day. The jury had before it a document containing on one page photographs of the appellant and Mr Mitchell. In those photographs, taken on 22 December 2016, it is evident that the appellant has short black hair, an olive complexion and a closely-cropped moustache and beard. Mr Mitchell has short dark-blonde or reddish hair, a fair complexion, with no beard or moustache but is perhaps unshaven. The men appear to be of similar build and age.
Under cross-examination, Mr Schriever did not resile from his statement, given on the day of the incident, that the man brandishing the gun was approximately 170 cm and “certainly shorter than me”. Mr Schriever’s height is 185 cm. It was an agreed fact that Mr Mitchell is between 165 and 170 cm in height. The appellant’s height was given as 185 cm, namely the same height as Mr Schriever. To have convicted, the jury must have concluded that Mr Schriever was wrong in his description about the offender’s height.
Mr Schriever did not resile from his statement that the man who committed the armed robbery upon him had a thin black moustache and a “rat’s tail”. Neither the appellant nor Mr Mitchell had a rat’s tail. The appellant has dark hair and Mr Mitchell’s hair is dark blonde or reddish.
Mr Schriever described the passenger in the car that returned to the scene as being about the same age as the man who had brandished the gun, perhaps taller though he was only observed seated, with a darker complexion and facial hair that was “wispy and thin”. None of these descriptors are accurate in relation to Mr Mitchell when he is described by reference to the appellant.
Q. You agree you told police when describing that male 'he had dark facial hair which looked quite wispy and thin'.
A.      Yes.
Q.      The other male you told police, you agree, had a thin moustache.
A.      If that's in the statement then that's what I said, yes.
Q.      I mean, when I say 'the other male' I mean the male with the shotgun.
A.      Yes.
Q. But when you described the other male as having dark facial hair were you intending that to mean he had a moustache and beard.
A.      Yes, I guess, I only got a brief look at him.
Mr Mitchell, though perhaps unshaven when photographed on 12 November 2016 when he was arrested with the appellant, did not have dark facial hair that was wispy and thin, nor a darker complexion than the appellant. He was shorter, not taller, than the appellant.
Mr Schriever did not see a second person in the black Holden utility during his interactions with the two men when he arrived at the scene of the accident. He did not see any person getting out of the black Holden utility and getting into his car when it was being car-jacked.
Mr Schriever’s evidence, taken alone, must have given rise to a doubt in the minds of the jury as to how many people were present when the car-jacking occurred, and whether the appellant was the offender.
What is significant about Mr Schriever’s evidence in respect of these inconsistencies and deficiencies of identification is that he gave his evidence in a frank manner and he did not attempt to improve his account in the witness box. He readily accepted that the most reliable account was the one given to police immediately after the incident, and he was cautious about changing it. He said he “wasn’t taking a real lot of notice” of the complexion of the younger of the two men when he enquired whether they needed assistance. Mr Schriever described him as “probably my colour I guess so what would that be? Pale-ish.” As to whether the person had facial hair he said:
“I think he was unshave – had a few days’ growth but I’m not 100% sure”.
In relation to description of the passenger as taller than the driver when his vehicle returned with two people in it, he said:
“Just by the – well, that was the appearance. They were both sitting so that was just an impression.”
Mr Schriever went on to state that when he was getting out of his car to give it to the robber, he “didn’t look him in the eye”.
A picture emerged of a witness who acknowledged that his observations were imperfect and who made no attempt to fill in gaps in his evidence.
The Crown submitted that the whole of the evidence left it open to the jury to find that the appellant and Mr Mitchell were present in the black Holden utility at the time of the accident and that the appellant was the offender. Defence counsel invited the jury to consider the possibility that before Mr Schriever arrived at the scene, the appellant gave Mr Mitchell the shotgun and took off down the road on foot. It was suggested that the appellant may have been picked up later by Mr Mitchell in Mr Schriever’s vehicle, whereupon the two returned to the scene to retrieve items from the black Holden.
The appellant submitted on appeal that the jury could not have been satisfied that the appellant committed the offence of armed robbery because of the significant inadequacies in Mr Schriever’s evidence, even conceding that the appellant was in the black Holden when the accident occurred.
The ground of appeal
The sole ground of appeal was that the verdict was unsafe or unreasonable. The task for the Court of Criminal Appeal is to determine whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. If the jury must have entertained a doubt the verdict should be set aside. In R v Russo[4], Stanley J referred to the High Court’s formulation of the test in M v The Queen[5]. His Honour said,
The majority judgment underlined the constitutional role of the jury in deciding the question of guilt. In answering the question whether it was open to the jury to be satisfied beyond reasonable doubt the appeal court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. Nonetheless, they said:[6]
If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.
[4] (2017) 128 SASR 377 at 379-380, [15].
[5] (1994) 181 CLR 487.
[6] M v The Queen (1994) 181 CLR 487 at 494.

The appellant contended that Mr Schriever’s evidence as to the description of the person with whom he spoke at the scene, and the description of the person who brandished the gun, and of the presence of only two people at the scene (one of whom was the “older man”, Mr Waples) left open the real possibility that Mr Mitchell was the offender. On such an account, the appellant may have been present in the vehicle when it collided with Mr Waples’ white utility, and when it returned shortly after the offence to retrieve items from the damaged black utility, but yet not have been the person who brandished the shotgun and demanded the vehicle.
The Crown contended that it was open to the jury to be satisfied beyond reasonable doubt that it was the appellant, and not Mr Mitchell or any other person, who committed the offence against Mr Schriever. In particular, the appellant’s control of the car and the items in it prior to and after the robbery, his motive to escape the scene, his actions in Mt Gambier immediately after the offence, the location of his DNA and other physical evidence in the car and on various objects, and his implied admissions in phone calls to his girlfriend accumulated into a compelling circumstantial case capable of establishing the appellant’s guilt beyond reasonable doubt.
The Crown asserted that doubts that may have arisen in the jurors’ minds as a result of Mr Schriever’s evidence were capable of resolution when the other evidence was properly considered. The deficiencies in the identification evidence have been identified and therefore it falls to be considered whether those deficiencies must have led to doubts that were not capable of resolution on the basis of other evidence.
The appellant’s control of black Holden and the items in it
The evidence indicated that the appellant was the driver of the black Holden on a journey from Hamilton in Victoria to the Mt Gambier Motel on 8 November 2016 where a friend, Mr Uphill, had arranged accommodation. The appellant’s girlfriend, Abbey McKenzie, described the black Holden as “their” car. Her mail was in the glove box when it was recovered. Her evidence was that they bought the car together. There was evidence from CCTV that the appellant was the driver of the black Holden when they left their unit in Hamilton. Further, there was evidence that when Mitchell joined the vehicle in another town later that day, he got into the vehicle as a passenger. When he did so, he was on crutches. The witness saw Mitchell get into the passenger side of a black Holden utility. The witness drove behind the utility for about 30 kilometres. Ms McKenzie’s evidence was that they did not reach the motel until late at night. The next day the vehicle was captured on CCTV coming and going to the motel and, relevant to this matter, left the motel at 7.41 am on 10 November 2016, driven by a man fitting the appellant’s appearance. This evidence indicated that the appellant was in control of and the primary user of the black Holden at the time.
The appellant’s DNA was located on bags of cannabis that were shown, through forensic evidence derived from the airbags that were deployed in the vehicle accident, to have been in the black Holden at the time of the collision. These bags, along with the shotgun, were later retrieved from an address at Rook Road, Mt Gambier later on 10 November 2016. Ms McKenzie’s evidence was that the cannabis belonged to her and the appellant. Those circumstances led to the appellant’s conviction for trafficking in a large commercial quantity of a controlled drug. A sawn-off shotgun was also located at the address at Rook Road and Ms McKenzie’s evidence was that it had been given to her by the appellant at that address and that she had wiped it down and placed it under a tree in the back yard of the premises where it was later located by police. That evidence demonstrated that the black Holden contained items of value the possession of which the appellant retained after the collision. The inference that the jury was asked to draw was that the item that the person who committed the robbery returned to collect was the cannabis, and that both the cannabis and the shotgun belonged to the appellant because it was he who was in control of them later in the day. On appeal, the Crown submitted that the Court could take into account that the jury’s conviction of the appellant on the trafficking charge revealed that the jury had rejected at least some of Ms McKenzie’s evidence insofar as it indicated a non-commercial purpose for their possession of the cannabis.
Who was driving when the accident happened?
A person described as having a black beard was observed by a police officer on the CCTV footage of the Mt Gambier Motel leaving the motel at 7.41 am on 10 November 2016 and getting into the driver’s seat of the black Holden utility. Ms McKenzie’s evidence was that she, the appellant, Mr Mitchell and Mr Mitchell’s younger brother had left the hotel in the morning and gone to the Ben Jackway’s house in Rook Road, Mt Gambier, where the appellant and Mr Mitchell left together in the black Holden. She remained in the house when they left.
One or two people in the vehicle at the time of the collision?
The appellant conceded on appeal that it was open to the jury to find that he and Mr Mitchell were both in the vehicle at the time of the accident. This conclusion was strongly indicated by the presence of Mr Mitchell’s blood on an airbag. More significantly in terms of the appellant’s case, Ms McKenzie’s evidence was that the appellant had told her that he and Mr Mitchell had had an accident in the black utility.
Q.    Did you ever talk about the reason that Ethan didn't have the black ute any more.
A.      No, I'm not sure.
Q.      Did he ever explain to you what had happened to the black ute.
A.      Yes.
Q.      What did he tell you had happened to it.
A.      That they had crashed it.
Q.      That they crashed it.
A.      Yes.
Q.      Did he say what they had done after they had crashed the black ute.
A. He told me that he collected stuff out of the ute and took off, and gave Lochie the shotgun.
Q.      Did he say how he had got the shotgun in the first place.
A.      No.
Q.      What did he say to you after telling you that he had given Lochie the shotgun.
A. He had said that Lochie owed him a favour so to get him a car and to - yeah, then he took off.
Q.      Are you saying that that's something that he told Lochie.
A.      Yes.
Q.      Did he say where he had taken off.
A.      Just back towards town I guess, I don't know.
Q.      Did he tell you what had happened after that.
A.      No.
The Crown submitted that the jury had rejected the account of the events described by Ms McKenzie as having been related to her by the appellant. There was some basis for the jury to do so. She was still in a relationship with the appellant when she gave evidence. The jury was aware, from their recorded telephone conversations, of her wish that he not be convicted. Her memory was poor. It was open to the jury to be sceptical about her motives and reliability as a witness. However, there was no reason to doubt that the appellant and Mr Mitchell were in the vehicle at the time that it collided.
Only one way to get out
The passenger side of the black Holden was incapable of being opened after the collision. Mr Schriever only saw one offender. The other person was either still in the vehicle when Mr Schriever arrived or had decamped on foot before he arrived. If that person remained in the vehicle during Mr Schriever’s conversation with Mr Waples and the offender, the passenger must have exited swiftly through the driver’s door into the middle of the road and got into Mr Schriever’s vehicle during the robbery, unnoticed by Mr Schriever. Defence counsel urged the jury at trial to reject the possibility that a second man entered Mr Schriever’s car unnoticed as impossible or at least “highly, highly unlikely”.
It was open, however, to the jury to conclude that whether a second person left the black Holden and got into Mr Schriever’s car, the person who was driving the stolen car was the appellant. Only the appellant’s DNA was located on Mr Schriever’s steering wheel. Some of the appellant’s cannabis was found under the driver’s seat. Sunglasses with Mr Mitchell’s blood on them, on the other hand, were found in the passenger’s foot-well in Mr Schriever’s car. In turn, the fact that the appellant was the driver at the time of the accident and of the car that was stolen, was circumstantially probative of the appellant being the person who had committed the robbery to procure the stolen car.
Motive
The appellant was said by the Crown to have had a motive to commit the robbery. The damaged vehicle was his, and it contained cannabis and a gun, and he needed to leave the scene of the accident. This evidence is at best equivocal. It is also consistent with the hypothesis that he ran off, leaving the injured Mr Mitchell to fend for himself and then when Mr Mitchell collected him down the road, he decided to return to the scene to retrieve the valuable, illegal items.
Mr Mitchell’s injury
The Crown maintained that the jury was entitled to accept Mr Schriever’s evidence that the person who held him up moved very quickly, as deduced from the fact that the period of time between Mr Schriever turning away from the conversation with the two men after the accident, getting into his vehicle, and finding a gun barrel pointed at his head, was very short. That quick movement, the Crown submitted, was inconsistent with the evidence that it was Mr Mitchell who was the offender. Mr Mitchell was carrying an injury that caused him to limp and that he had in fact only two days earlier, on 8 November 2016, been on crutches. That evidence also tended to suggest, however, that Mr Mitchell may have had difficulty in decamping the scene on foot. Again, the evidence about the injury did not particularly favour one account or the other.
A knock on the door
Shortly after the accident, Mr Schriever’s vehicle was abandoned on Trevorrow Street, Mt Gambier. Ms Inglis lived 100-150 metres away from where the vehicle was abandoned. She was at home on the morning of 10 November 2016 when a man came to the door, identified himself as “Ethan” and asked to be taken a short distance to an address elsewhere in Mt Gambier.
Her evidence describing the man was as follows:
Q.      About what age was he, would you say.
A.      Probably in his 20s, late to mid-20s.
Q.      How would you describe his complexion.
A.      He had darker skin.
Q.      Do you know what ethnicity he was.
A.      No.
Q.      Do you know whether he had any facial hair.
A.      He had facial hair.
Q.      What facial hair did he have.
A.      He had a beard, I think.
Q.      Was it long or short, are you able to say.
A. I think it was just scruffy looking. I couldn't tell if it was long, but probably a bit longer than yours.
Q.      Maybe a centimetre, or something like that.
A.      Yeah.
Q.      Did he have long or short hair on his head.
A.      I can't remember.
Q.      Generally what was his appearance like.
A.      I suppose he looked not the tidiest.
Q.      Did you make any observation about his demeanour, about his state of composure.
A.      He looked a bit - I don't know. He seemed sort of normal but a bit rushed, possibly.
Q.      Did he say anything to you or to Tim in your presence.
A. He said that they had just had a car accident and I can remember sort of saying or asking was everyone okay but then I didn't really give - like he said 'Yes' so I didn't give it a second thought.
This evidence pointed very strongly towards the conclusion that it was the appellant who knocked on that door and who was subsequently taken by Ms Inglis and her friend, Tim, to 25 Rook Road where the gun and cannabis were later located by police.
Ms Inglis’ evidence was also at odds with Ms McKenzie’s account in a significant respect. Ms McKenzie gave evidence that the appellant and Mr Mitchell both arrived at 25 Rook Road having been delivered by an unknown woman in a station-wagon. It was open to the jury to conclude that Ms Inglis, who had no connection to the appellant, was giving accurate evidence that she only gave a lift to one person. Ms McKenzie, on the other hand, might have been thought to have falsely stated that the two men returned together in support of an account that did not connect her partner closely, and solely, with the abandoned stolen vehicle. This further indicated that it was the appellant who had abandoned the stolen vehicle, and the appellant who was carrying the shot-gun in the aftermath of the armed robbery.
It was common ground that, upon arriving at Rook Road, the appellant handed Ms McKenzie the shot-gun, which she wiped clean, and the cannabis. She put both in the back garden with a view, she said, to taking both back to their house in Hamilton.
The state of the identification evidence after the other circumstances are considered
It was open to the jury to find that the person who robbed Mr Schriever of his vehicle was certainly the same person that Mr Schriever had been talking to seconds earlier with Mr Waples. There was also sufficient evidence that the offender was the driver of the black Holden. Further, there was evidence that the appellant was the only driver of Mr Schriever’s car, and certainly the person in control of the gun and the cannabis. In other words, whatever errors Mr Schriever made regarding the appearance of the driver and his passenger, if the jury was satisfied that the appellant was driving the vehicle at the time of the crash, they were also entitled to be satisfied that it was the appellant who committed the offence of armed robbery on Mr Schriever. Whilst the jury may have entertained a doubt, based on the possibility that Mr Mitchell was in fact the driver at the time of the accident, or that somehow Mr Mitchell exited the damaged vehicle and committed the robbery and the appellant ducked out of sight, or that Mr Mitchell was the only person in the vehicle, it is not the case that the jury must have entertained such a doubt. The doubts are each capable of resolution by other evidence. The possibility that Mr Mitchell was the driver at the time of the accident is not supported by any other evidence. The possibility that Mr Mitchell exited the damaged vehicle and held up Mr Schriever is inconsistent with Mr Schriever’s failure to identify that he dealt with two different men; one fair-haired, one dark-haired, in close proximity in such a short space of time. The possibility that Mr Mitchell was the only occupant of the black Holden was inconsistent with the implied admissions of the appellant to his partner, Ms McKenzie, in their phone conversations that he and Mr Mitchell had “crashed the car” and that he “handed Lockie the gun and took off”. The possibility that the appellant was the driver at the accident but left the scene before Mr Schriever arrived is inconsistent with the physical evidence in Mr Schriever’s car and the appellant’s arrival, alone but carrying the gun and cannabis, a short time later at Ms Inglis’ house.
Doubts resolved
Mr Schriever’s evidence, alone, would not have been sufficient to convict the appellant of the offence of aggravated armed robbery. The jury was entitled, however, to draw upon the whole of the evidence to reach its conclusion as to whether the Crown had proven its case beyond reasonable doubt. When the exercise of reviewing the whole of the evidence is undertaken it is apparent that doubts as to the identity of the offender were wholly resolved. I would dismiss the appeal.

[2019] SASCFC 139

8 November 2019

Key Legal Topics

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Criminal Law

Evidence

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Appeal

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